Young v. American Mini Theatres, Inc.

Mr. Justice Stewart,

with whom Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Black-mun join, dissenting.

The Court today holds that the First and Fourteenth Amendments do not prevent the city of Detroit from using a system of prior restraints and criminal sanctions to enforce content-based restrictions on the geographic location of motion picture theaters that exhibit non-obscene but sexually oriented films. I dissent from this drastic departure from established principles of First Amendment law.

This case does not involve a simple zoning ordinance,1 or a content-neutral time, place, and manner restriction,2 *85or a regulation of obscene expression or other speech that is entitled to less than the full protection of the First Amendment.3 The kind of expression at issue here is no doubt objectionable to some, but that fact does not diminish its protected status any more than did the particular content of the “offensive” expression in Erznoznik v. City of Jacksonville, 422 U. S. 205 (display of nudity on a drive-in movie screen); Lewis v. City of New Orleans, 415 U. S. 130 (utterance of vulgar epithet); Hess v. Indiana, 414 U. S. 105 (utterance of vulgar remark) ; Papish v. University of Missouri Curators, 410 U. S. 667 (indecent remarks in campus newspaper) ; Cohen v. California, 403 U. S. 15 (wearing of clothing inscribed with a vulgar remark); Brandenburg v. Ohio, 395 U. S. 444 (utterance of racial slurs); or Kingsley Pictures Corp. v. Regents, 360 U. S. 684 (alluring portrayal of adultery as proper behavior).

What this case does involve is the constitutional permissibility of selective interference with protected speech whose content is thought to produce distasteful effects. It is elementary that a prime function of the First Amendment is to guard against just such interference.4 By refusing to invalidate Detroit’s ordinance the Court rides roughshod over cardinal principles of First Amend*86ment law, which require that time, place, and manner regulations that affect protected expression be content neutral except in the limited context of a captive or juvenile audience.5 In place of these principles the Court invokes a concept wholly alien to the First Amendment. Since “few of us would march our sons and daughters off to war to preserve the citizen’s right to see 'Specified Sexual Activities’ exhibited in the theaters of our choice,” ante, at 70, the Court implies that these films are not entitled to the full protection of the Constitution. This stands “Voltaire’s immortal comment,” ibid., on its head. For if the guarantees of the First Amendment were reserved for expression that more than a “few of us” would take up arms to defend, then the right of free expression would be defined and circumscribed by current popular opinion. The guarantees of the Bill of Rights were designed to protect against precisely such majori-tarian limitations on individual liberty.6

*87The fact that the “offensive” speech here may not address “important” topics — “ideas of social and political significance,” in the Court’s terminology, ante, at 61— does not mean that it is less worthy of constitutional protection. “Wholly neutral futilities . . . come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons.” Winters v. New York, 333 U. S. 507, 528 (Frankfurter, J., dissenting); accord, Cohen v. California, supra, at 25. Moreover, in the absence of a judicial determination of obscenity, it is by no means clear that the speech is not “important” even on the Court’s terms. “[S]ex and obscenity are not synonymous. . . . The portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” Roth v. United States, 354 U. S. 476, 487 (footnotes omitted). See also Kingsley Pictures Corp. V. Regents, supra, at 688-689.

I can only interpret today’s decision as an aberration. The Court is undoubtedly sympathetic, as am I, to the well-intentioned efforts of Detroit to “clean up” its streets and prevent the proliferation of “skid rows.” But it is in those instances where protected speech grates most unpleasantly against the sensibilities that judicial vigilance must be at its height.

Heretofore, the Court has not shied from its responsibility to protect “offensive” speech from governmental interference. Just last Term in Erznoznik v. City of Jacksonville, supra, the Court held that a city could not, consistently with the First and Fourteenth Amendments, make it a public nuisance for a drive-in movie theater to show films containing nudity if the screen were visible *88from a public street or place. The factual parallels between that case and this one are striking. There, as here, the ordinance did not forbid altogether the “distasteful” expression but merely required an alteration in the physical setting of the forum. There, as here, the city’s principal asserted interest was in minimizing the “undesirable” effects of speech having a particular content. And, most significantly, the particular content of the restricted speech at issue in Erznoznik precisely parallels the content restriction embodied in § 1 of Detroit’s definition of “Specified Anatomical Areas.” Compare Jacksonville Municipal Code § 330.313 with Detroit Ordinance No. 742-G, § 32. 0007. In short, Erznoznik is almost on “all fours” with this case.

The Court must never forget that the consequences of rigorously enforcing the guarantees of the First Amendment are frequently unpleasant. Much speech that seems to be of little or no value will enter the marketplace of ideas, threatening the quality of our social discourse and, more generally, the serenity of our lives. But that is the price to be paid for constitutional freedom.

Contrast Village of Belle Terre v. Boraas, 416 U. S. 1, which upheld a zoning ordinance that restricted no substantive right guaranteed by the Constitution.

Here, as in Police Dept. of Chicago v. Mosley, 408 U. S. 92, and Erznoznik v. City of Jacksonville, 422 U. S. 205, the State seeks to impose a selective restraint on speech with a particular content. It is not all movie theaters which must comply with Ordinances No. 742-G and No. 743-G, but only those “used for present*85ing material distinguished or characterized by an emphasis on matter depicting, describing or relating to ‘Specified Sexual Activities’ or ‘Specified Anatomical Areas’ . . . .” The ordinances thus “ ‘sli[p] from the neutrality of time, place, and circumstance into a concern about content.’ This is never permitted.” Police Dept. of Chicago v. Mosley, supra, at 99 (citation omitted). See, e. g., Hudgens v. NLRB, 424 U. S. 507, 520; Orayned v. City of Rockford, 408 U. S. 104, 115.

The regulatory scheme contains no provision for a judicial determination of obscenity. As the Court of Appeals correctly held, the material displayed must therefore be presumed to be fully protected by the First Amendment. 518 F. 2d 1014, 1019.

See, e. g., Terminiello v. Chicago, 337 U. S. 1, 4-5.

See, e. g., Hudgens v. NLRB, supra; Erznoznik v. City of Jacksonville, supra; Police Dept. of Chicago v. Mosley, supra. This case does not involve state regulation narrowly aimed at preventing objectionable communication from being thrust upon an unwilling audience. See Erznoznik v. City of Jacksonville, supra, at 209. Contrast Lehman v. City of Shaker Heights, 418 U. S. 298; Rowan v. Post Office Dept., 397 U. S. 728. Nor is the Detroit ordinance narrowly aimed at protecting children from exposure to sexually oriented displays that would not be judged obscene by adult standards. Contrast Ginsberg v. New York, 390 U. S. 629.

See, e. g., Terminiello v. Chicago, supra, at 4-5. The Court stresses that Detroit's content-based regulatory system does not preclude altogether the display of sexually oriented films. But, as the Court noted in a similar context in Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, this is constitutionally irrelevant, for “'one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.’ ” Id., at 556, quoting Schneider v. State, 308 U. S. 147, 163. See also Interstate Circuit v. Dallas, 390 U. S. 676; Bantam Books, Inc. v. Sullivan, 372 U. S. 58.